Tuesday, December 04, 2012

On December 3rd 2012, new FINRA Rule 5123
goes into effect, requiring a notice filing requirement for some types of
private placements. According to Thomas Selman, FINRA Executive Vice President
for Regulatory Policy, Rule 5123 will enable FINRA to better police the private
placement market, which has been the source of many instances of abuse. In FINRA’s
administration of Rule 5123, he related, FINRA staff will be particularly
interested in the extent to which a broker-dealer selling a private placement
has undertaken a reasonable inquiry concerning the security and the issuer.

The SEC found that Rule 5123 is consistent with Section
15A(b)(6) of the Exchange Act,which
requires that FINRA rules be designed to prevent fraudulent and manipulative
acts and practices, to promote just and equitable principles of trade, and, in
general, to protect investors and the public interest. In approving the rule,
the Commission also considered the rule’s impact on efficiency, competition,
and capital formation.

In filings with the SEC, FINRA stated its belief that
Rule 5123 is consistent with the JOBS Act. In particular, FINRA stated that it
believes that requiring a member to make a notice filing subsequent to a sale
of a private placement would not unnecessarily burden members or capital
formation in light of the intended regulatory benefits to investors of the
resulting enhanced oversight. FINRA suggested that investor confidence would be
fostered by the enhanced oversight resulting from Rule 5123 and that it would
thereby facilitate capital formation. FINRA further reiterated its view that Rule
5123 would enhance its regulatory oversight of broker-dealers that sell
securities in the private placement market.In response to comments that FINRA
can only partially address the problems in this area unless the SEC also adopts
rules applicable to issuers and unregulated persons, who provide essentially
the same services as FINRA members, FINRA said that it generally supports
broader oversight of private placements and stated that improvement in the
protection of broker-dealer customers should not depend upon whether the
Commission adopts rules for issuers and entities not subject to FINRA’s
oversight.